TMI Blog2008 (7) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... s No. 951 to 988 of 2005 whereby and wherein the Tribunal has rendered a finding that the exports of shrimps/prawn made by the respondents were not exigible to levy of cess under Section 3 of the Agricultural Produce Cess Act, 1940 read with Item No. 7 in the Schedule attached to that Act, as the prawn and shrimps are different from fish for the purpose of Agricultural Produce Cess Act, 1940. The common questions of law that have arisen out of the order of the Tribunal for the decision of this Court in all these cases, as framed at the stage of admission, are: (1) Whether the Tribunal failed to consider that the provision of the Customs Act or the explanatory notes on the Harmonised systems of Nomenclature (HSN) cannot be relied upon to determine the scope of the various entries under the Schedule of the Agricultural Produce Cess Act, 1940? (2) Whether the Tribunal is right in not considering the issues that there cannot be any distinction with regard to definition and classification of fish and prawns/shrimps under the provisions of the Customs Tariff Act, 1975, the Agricultural Produce Act, 1940 and the Marine Products Export Development Authority Act? 2. As the facts in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Tariff Act, Harmonised Commodity Description and Coding System, the Marine Products Export Development Authority Act, 1972 classify the fish and prawn/shrimps as different products. In view of the legal position and duly following the above cited case laws, the benefit of doubt has to be given to the appellants by not charging the cess under the Agricultural Produce Cess Act, 1940. Accordingly, the appeal is allowed with the consequential relief." 6. The Commissioner of Customs carried the matter on appeal to the CESTAT, South Zone Bench at Chennai. The Tribunal, in its common order, dated 8-7-2005 held as follows : "For the reasons stated we hold that the export of shrimp/prawn made by the respondents were not exigible to levy of cess under Section 3 of the Agricultural Produce Cess Act, 1940. The lower appellate authorities were giving the benefit of doubt to the assessee as they could not reach a finding with certainty that shrimp/prawn was different from fish. Beyond doubt, we hold that prawn and shrimps are different from fish for the purpose of the Agricultural Produce Cess Act, 1940 and we sustain the impugned order after removing the doubt. In the result, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me loosely applied in popular usage to many animals of diverse characteristics, living in the water - Webster 1913 Dictionary. 11. He also relied on Elsevier's Dictionary of Fisheries complied by P.E. Eapen, in which fish has been defined to mean the cold blooded animals typically with backbone, gills, and fins and primarily depended on water as medium to live and breath with gills. 12. Per contra, Mr. Joseph Vellapally, learned senior counsel appearing for the exporters contended that the appeal filed under Section 130 of the Customs Act is not maintainable as the issue to be decided is one of classification of the goods for the purpose of assessment. Section 130 of the Customs Act provides for an appeal to the High Court, but specifically excludes the appeal from an order relating to the determination of the question, having a relation to the rate of duty of customs or to the value of goods, for the purposes of assessment. This appeal having a relation to the rate of duty of customs cannot be maintained. 13. On merits he contended that the term 'fish' stated in the schedule to the Agricultural Produce Cess Act, 1940, in the absence of any definition in that Act, has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the Supreme Court in the case of Naveen Chemicals Mfg. And Trading Co. Ltd. v. Collector of Customs , 1993 (68) E.L.T. 3 (S.C.) = (1993) 4 SCC 320. Though in that judgment, much was concentrated on Section 129(c) of the Customs Act, reference has also been made to Section 130 of the Act and ultimately the Supreme Court has evolved a test for the purpose of determining the question. 18. To put it in the words of the Supreme Court, the test is as follows : "This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT : does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods." While thus holding, the Apex Court dismissed the Civil Appeal by observing thus : "Strictly speaking, on the interpretation that we have placed upon the said expression, this appeal would not lie from the impugned order of CEGAT to the Supreme Court. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dule to the Act sets out only 'fish'. 22. How to interpret the provisions or the entries contained in the Schedule to the fiscal statutes has been repeatedly explained by the Apex Court in catena of decisions. The uniform opinion of the Supreme Court, in all those cases, run as follows : "No words or expression used in any statute can be stated to be redundant or superfluous. In matters of interpretation, one should not concentrate too much on one word and pay too little attention to other words. Every provision or every word must be looked at generally and the context in which it is used and not in isolation. The elementary principle of interpreting any word while considering a statute is to gather the mens and sententia legis of the legislature. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided." (emphasis supplied). 23. As stated by the Privy Council, in the case of Crawford v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawns/shrimps also. 26. It is an admitted fact that the word 'fish' has not been defined in the Act itself, in the absence of the definition, rule of interpretation is that particular words used by the legislature in the denomination of articles or goods should be understood according to the common or commercial understanding of the term used, for the Legislature does not suppose our merchants to be naturalists or geologists or biologists and thus resort should be made to understand the popular meaning or the meaning attached to them by finding out as to how those goods were understood by those dealing with them, that is to say, to their commercial sense. (See Mathuram Agrawal v. State of M,P., (1999) 8 SCC 667). 27. The fish and prawns are delicacies in the South India. If the common parlance test is applied. It cannot be contended that fish and prawn are one and the same commodity. If a man were to ask for fish in the market and if prawn is provided or in the vice versa, he would not accept the same. However, it is an admitted fact that no evidence to that effect is available in this case. 28. It is well settled that if there is some difficulty, as in this case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oda Diplopoda Chilopoda Symphyla Insecta apterygota Exopterygota Enteropneusta Endopterygota Chordata Gnathostomata Chondricythyes Mamalia Hemichordata Urochordata Cephalo chordata Vertebrata agnatha Osteichthyes Amphibia Reptilia Aves, From this, it is evident that Crustaceans are found under the sub phylum of mandibulata and phylum of Arthropoda. Shrimp is smaller in size, prawn is medium in size and lobster is larger in size. They all belong to the sub phylum of Crustacea. 31. Though in certain dictionaries, 'fish' has been denoted primarily as vertebrates with fins and destitute of limbs, but extended to include cetaceans, crustaceans, molluscs, etc., lastly, it was found noted, 'but in the modern scientific language, it was restricted to vertebrates provided with gills throughout the life and cold blooded.' 32. The common parlance distinction between 'fish' and 'prawn/shrimp' supported by the dictionary meaning and the Biological differences stated above make it clear that though fish and prawn/shrimp are aquatic animals, they are different from each other. The commercial parlance as well as biolo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of this Act". The said definition has been taken in aid to find out the intention of the legislature vis-a-vis, the term 'fish' by the Tribunal. The Tribunal found that the definition of the word 'marine products' in that Central Act, though inclusive of shrimp, prawn, lobsters, etc., but, shrimp, prawn, lobster and fish are stated separately. The fact that shrimps/prawn and fish are stated as different marine products, show that the shrimp, prawn and fish were known as different items in commercial parlance. Like that the Tribunal also took the clue from the Customs Tariff Act, 1975 wherein also fish has been classified under different heading than shrimps/prawns, which has been classified in yet another heading. 35. From the whole lot of materials available, the one and only conclusion that can be arrived at is that the expression 'fish' found as item No. 7 in the Schedule to the Agricultural Produce Cess Act, 1940, does not include within itself prawns and shrimps. 36. We can also take support from the decision of the Orissa High Court in the case of State of Orissa v. CI Foods Limited, (1982) 50 STC 152, wherein a Division Bench has found that biologically, 'f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in. Schedule 7 to the Agricultural Produce Cess Act, 1940 would not include within itself prawns and shrimps. 41. Mr. Joseph Vellapally, sought to take assistance from the judgment of the Supreme Court in the case of Collector of Customs, Bombay v. Swastic Woolens (P) Ltd., 1988 (37) E.L.T. 474 (S.C.) = 1988 (Supp) SCC 796 to contend that the question as to whether 'fish' would include prawns/shrimps, is a question of fact, when the Tribunal and the authorities below have held that they are two different commodities under Section 130 of the Customs Act, an appeal which involves a substantial question of law, can alone be entertained and the issue being question of fact, the Court need not interfere with the finding arrived at by the ultimate fact finding authority. 42. In that case before the Apex Court, an importer who imported consignment of wool materials, claimed that it is wool waste and hence not liable for customs duty as per a Notification. The department was of the opinion that what was imported was not wool waste, but wool sleeve and imposed duty. The experts gave a report that it was not possible to give an opinion by visual observations of the material an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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